Director of Public Prosecutions v Felton
[2016] VCC 699
•25 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-00968
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GUY THOMAS FELTON |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, 28, 29 April 2016 & 5 May 2016 | |
DATE OF SENTENCE: | 25 May 2016 | |
CASE MAY BE CITED AS: | DPP v Felton | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 699 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Common assault – assault on wife – assault on son – domestic violence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | The Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. Dann QC | Tony Hargreaves & Associates |
HIS HONOUR:
1 Guy Thomas Felton, you have pleaded guilty to two charges of common law assault.
2 The maximum penalty for a charge of common law assault is five years' imprisonment.
3 The circumstances of your offending are set out in the Prosecution Opening for Plea which can be summarised as follows:
· On an unknown date between February and May 2006, you were at your home address in Diamond Creek with your then wife Allison, and your two boys. In the presence of your children, who would then have been aged about 10 and 7 years of age, you verbally abused your wife, and then grabbed her and threw her against the wall. That conduct constitutes Charge 1 of Common Law Assault.
· Following that incident, you and your wife separated. You reunited for a period of time, but final separation then occurred in 2010.
· In December 2012, you called Allison to tell her that you were coming over to her home in Diamond Creek to take the boys to karate class. During that phone call your former wife told you that the boys had been “mucking up”. You arrived at the home at about 1pm. You walked straight into your older son’s room and began swearing loudly at him. Your wife entered the room. You had your hands around your son’s neck. You then threw him onto the bed and slapped him across his head several times. This conduct constitutes Charge 2 of Common Law Assault.
· Insofar as it may have been reported previously that this was an act of choking or attempted choking, I find that is incorrect and I do not sentence you on that basis.
4 The Prosecution Opening also set out the broader context of your offending. It states that:
“The offences are set against a backdrop where, over the course of the relationship, there have been a number of acts of family violence and abusive behaviour and bullying by the accused toward his wife and their two sons. This includes both verbal and physical abuse. Most of these incidents have occurred as a result of the accused consuming alcohol. Many of the acts directed at his wife have been committed in the presence of the children”.
5 Your counsel did not dispute the accuracy or the contents of the Prosecution Opening at your plea hearing. I therefore accept that this passage provides an accurate context to the two offences before me.
6 Nevertheless, I emphasize that I sentence you only in respect of the two offences with which you have been charged and to which you have pleaded guilty.
Personal Background
7 You are currently aged 46. You were 36 at the time of the first offence, and 42 at the time of the second offence.
8 You were born, raised, and educated in the northern suburbs of Melbourne. Your mother died when you were aged six and you were effectively raised by your maternal grandparents. You saw your father rarely and have had virtually no contact with him since the age of 17.
9 By way of education you completed Year 12. After leaving school you had a number of jobs in the retail area and then at Ford at Broadmeadows.
10 You joined the Victoria Police in 1990, and served as a police officer for some 23 years until 2013, the last eight years of which were in the Field Catering Unit. You resigned as a consequence of stress. Your time with the police force has been marked by a number of traumatic events, including a police shooting in 1991, a number of fatal accidents in the early 2000s, and involvement in violent demonstrations.
11 Whilst no psychological or psychiatric report was tendered on your behalf, I have been provided with a report from your general practitioner, Dr Lee, dated 8 February 2014. Dr Lee indicated that you had, at least in the past, suffered from depression, anxiety, and post-traumatic stress disorder.
12 You lodged a claim in respect of work related stress and are currently on a disability support pension. You are currently prescribed anti-depressant medication. Your counsel informed me that you experience varying moods and have been suicidal at times.
13 You married your former wife in 1997. Your two sons are now aged about 16 and 13. Your counsel described your family life as being “torn apart” as a consequence of protracted Family Court proceedings involving property issues, custody and access arrangements concerning your sons. You remain hopeful of playing some role in the lives of your sons in the future.
Sentencing Principles
14 Section 5 of the Sentencing Act 1991 (Vic) provides the purposes for which sentences may be imposed. Principally, these include the need to punish you for your offences in a manner that is just in all the circumstances, to deter you and others in the community from committing similar offences in the future, to manifest the Court’s denunciation of your offending, and to protect the community from you.
15 In your case, I consider general deterrence and the denunciation of your offending to be of particular significance. It is important that my sentence condemns your behaviour in strong terms.
16 In addition, I have taken into account each of the matters set out in s. 5(2) of the Sentencing Act.
17 In particular, I take into account the matters referred to in that sub-section:
(a) That the maximum penalty for the offence of Common Law Assault is 5 years' imprisonment.
(b) The nature and the gravity of your offending.
I consider that any violence in a family context is a crime of real concern in our community. Your wife and your son were soft targets – persons who were unlikely to be able to properly defend themselves against you, a much larger and stronger person than them.
(c) Your culpability and degree of responsibility for the offence.
There there can be no doubt that you alone were responsible for the offending behaviour, and you are entirely culpable for it.
(d) The impact of the offending on your victims, and the personal circumstances of those victims.
Your ex-wife and your two sons have each provided a Victim Impact Statement to the Court, the contents of which I have noted. There are a number of parts of those statements which I consider are inadmissible. Nevertheless I am able to conclude that the effect upon them of your offending behaviour has been profound.
(e) Your plea of guilty and the stage at which you pleaded guilty.
The matter was originally listed for trial before me, on an indictment containing 11 charges. Before a jury was empanelled, a fresh indictment was filed and you pleaded guilty to these two charges of common law assault. There was no suggestion that you had indicated a preparedness to plead to any charges before that day. Whilst I do not consider this to be an early plea of guilty, your plea does have, in my view, significant utilitarian value. Most importantly, it saved witnesses, and in particular your former wife and your sons, from having to give evidence in what might have been a lengthy trial.
(f) I also take into account s. 5(4) of the Sentencing Act which provides that a Court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
Mitigating factors
18 I accept a number of the submissions made by your counsel in relation to mitigation of your sentence.
19 I take into account your childhood in which you appear to have had a significant lack of what might be described as normal parental affection and support.
20 Your work record has been a sound one for many years. I was advised at your plea hearing that you had resigned from the police force because of stress. I accept that over your years with the force you have made a contribution to the community.
21 Your plea of guilty in relation to these charges has already been referred to. You are entitled to a discount in relation to your sentence by reason of that plea.
22 A number of character references have been tendered on your behalf. Many of the authors of those testimonials seem surprised, almost to the point of disbelief, at the charges to which you have pleaded. The references collectively speak of your otherwise good character, and I take that into account.
23 I consider that you do appear to have reasonably good prospects for rehabilitation. I note that in 2015 you undertook and completed an Anglicare Men’s Behavioural Change Course and that is to your credit. It is, I consider, an indication that you have some insight into your behavioural problems and it is likely to be a further indicator of your prospects for rehabilitation.
24 I accept that there has been some delay in bringing these matters to Court and that you have had these and other allegations hanging over your head for some 2 ½ years.
25 I am in possession of a report from Corrections Victoria dated 5 May 2016, in which the author states that you are assessed as being suitable for a Community Correction Order.
Sentence
26 In accordance with s. 5(4) of the Sentencing Act I consider that the purposes for which I am to sentence you can be achieved without imposing a custodial term.
27 Your counsel submitted on the date of your plea hearing and in further written submissions received earlier this week that a sentencing disposition without conviction would be appropriate in your case. I have had regard to the provisions of s. 8(1) of the Sentencing Act in relation to this. I have also had regard to the Court of Appeal decision of York v R to which your counsel referred me. I consider that the circumstances of the offending in that case are vastly different to those in yours.
28 I am of the opinion that the nature of your offending, the need for denunciation of your conduct, and principles of general deterrence demand that I impose a conviction.
29 It is my intention to sentence you to a two year Community Correction Order subject to a number of conditions, and with a conviction. I would only make such a CCO should you consent to it being made. I consider that such an Order will reflect the denunciation by the court of your behaviour and adequately punish you. I have noted the comments of the Court of Appeal in the matter of Boulton v DPP concerning the punitive nature of such Orders.
Before I ask you whether you consent to such a Community Correction Order, I need to outline the conditions that will be attached to it.
30 Firstly, there are a number of mandatory conditions set out in s. 45 of the Sentencing Act. These are:
(a) That you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) That you comply with any obligations or requirements provided by regulations;
(c) That you must report to, and receive visits from, the Secretary of the Department of Justice, or his or her nominee, as directed during the period of the order;
(d) That you must report to the Greensborough Community Correctional Service at 4/18 Sherbourne Road, Greensborough within two clear working days of today;
(e) That you must notify the Secretary of any change of your address or employment within two clear working days after that change;
(f) You must not leave Victoria, except with the expressed permission of the Secretary;
(g) That you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this Community Correction Order.
31 In addition to those mandatory terms, there will be further conditions that:
(a) Firstly, pursuant to s. 48C of the Sentencing Act, you must perform 100 hours of unpaid community work during the course of the two year Order;
(b) Secondly, you must undergo treatment and rehabilitation, as directed, by the Secretary of the Department of Justice or his or her nominee, with regard to alcohol abuse and dependency pursuant to s. 48D(3)(b) of the Act;
(c) Thirdly, you must undergo any mental health assessment and treatment considered necessary for you.
(d) Fourthly, you are to be supervised, monitored and managed, as directed by the Secretary or his or her nominee for the period of the Community Correction Order. I note that, under this condition, you will be considered for participation in Anger Management Programs which I consider would be appropriate.
32 Before I ask you whether you consent to such a Community Correction Order, I ask you this: do you want to have a moment with your counsel to discuss these conditions?
33 I will just stand the matter down briefly while you are able to do so, Mr Dann.
34 ##A:S# (Short adjournment.)
35 HIS HONOUR: Does Mr Felton consent to a Community Correction Order in those terms, Mr Dann?
36 MR DANN: Yes, he does, Your Honour.
37 HIS HONOUR: Thank you. There will be some documentation that you will have to sign in just a moment, Mr Felton, and that will be prepared if it has not already been.
38 Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges and been convicted of them, I would have sentenced you to imprisonment for a period of six months.
39 Mr Cordy, are there any ancillary orders sought in this matter?
40 MR CORDY: If I can just check with my instructor who is in court, Your Honour, as to a 464ZF.
41 UNIDENTIFIED VOICE: No ancillary orders, Your Honour.
42 HIS HONOUR: She informs me - I do not know if you heard that, but she informs me no ancillary orders are sought.
43 MR CORDY: Thank you, Your Honour.
44 HIS HONOUR: If you can have your client sign that, Mr Dann, thank you. Yes, anything further either Mr Cordy or Mr Dann?
45 COUNSEL: No, Your Honour.
46 Thank you.
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